Municipal Prop. v. Privacy Commr., (2004) 187 O.A.C. 54 (DC)

• Judge: Benotto, S.J., Dunn and McCombs, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: February 10, 2004
• Jurisdiction: Ontario
• Citations: (2004), 187 O.A.C. 54 (DC)

Municipal Prop. v. Privacy Commr. (2004), 187 O.A.C. 54 (DC)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. MY.083

Municipal Property Assessment Corporation (applicant) v. Tom Mitchinson, Assistant Information and Privacy Commissioner and Security Recovery Group Inc. (respondents) and Attorney General for Ontario (intervenor)

(647/03)

Indexed As: Municipal Property Assessment Corp. v. Information and Privacy Commissioner (Ont.) et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Benotto, S.J., Dunn and McCombs, JJ.

May 21, 2004.

Summary:

A collection agency asked the Municipal Property Assessment Corporation (MPAC) for an electronic record containing personal information concerning more than 10 million Ontario residents. MPAC refused. The agency appealed to the Information and Privacy Commissioner. The Assistant Com­missioner Mitchinson allowed the appeal and ordered MPAC to provide the electronic record to the agency, free of charge. MPAC sought judicial review. The Attorney General for Ontario intervened in support of MPAC.

The Ontario Divisional Court allowed the application, quashed the Assistant Commis­sioner's decision, and remitted the matter for new hearing.

Crown - Topic 7206

Examination of public documents - Free­dom of information - Bars - Personal information - The Municipal Property Assessment Corporation (MPAC) refused to release an electronic record containing personal information concerning over 10 million Ontario residents to a collection agency - The Assistant Information and Privacy Commissioner ordered MPAC to provide the electronic record - The Assis­tant Commissioner held that, although the record contained personal information of individual property owners, the exception in s. 14(1)(d) of the Municipal Freedom of Information and Privacy Protection Act applied - An institution head could disclose personal information if another statute expressly authorized disclosure - The Assistant Commissioner held that s. 39 of the Assessment Act, which required the MPAC to deliver the assessment roll to the municipal clerk who then made it available for inspection by the public, expressly authorized the disclosure of the electronic record - The Ontario Divisional Court quashed the decision - The Assessment Act neither obligated nor authorized MPAC to do anything besides making the municipal rolls available to the municipal clerk - There were no compelling public policy considerations that overrode the privacy interests at stake in this case - See para­graphs 14 to 21.

Crown - Topic 7206

Examination of public documents - Free­dom of information - Bars - Personal information - The Municipal Property Assessment Corporation (MPAC) refused to release an electronic record containing personal information concerning over 10 million Ontario residents to a collection agency - Although the electronic record itself was not available to the public, the information contained in the record was available in paper form for the public to inspect - The Assistant Information and Privacy Commissioner ordered MPAC to provide the electronic record - Section 15(a) of the Municipal Freedom of Infor­mation and Privacy Protection Act pro­vided that an institution head could refuse to disclose a record if the record, or the information contained in the record, had been published or was currently available to the public - The Ontario Divisional Court stated that, in the circumstances, s. 15(a) conferred authority upon the institu­tion head to prohibit disclosure - See para­graphs 22 and 23.

Crown - Topic 7406

Examination of public documents - Free­dom of information - Disclosure - Par­ticular documents - Material published or already publicly available - [See both Crown - Topic 7206 ].

Practice - Topic 7029

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Novel or important point - The Municipal Property Assessment Cor­poration (MPAC) refused to release an electronic record containing personal infor­mation concerning over 10 million Ontario residents to a collection agency - The Assistant Information and Privacy Com­missioner ordered MPAC to provide the electronic record - MPAC successfully sought judicial review - The Ontario Divi­sional Court refused to award costs where, the public interest issues here, coupled with the issues of statutory and precedent interpretation, made this a novel case - See paragraph 26.

Practice - Topic 7029.5

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Public interest - [See Prac­tice - Topic 7029 ].

Cases Noticed:

Right to Life Association of Toronto and Area v. Metropolitan Toronto District Health Council et al. (1991), 53 O.A.C. 231; 86 D.L.R.(4th) 441 (Div. Ct.), refd to. [para. 13, footnote 13].

John Doe v. Information and Privacy Com­missioner (Ont.) (1993), 64 O.A.C. 248; 12 O.R.(3d) 767 (Div. Ct.), refd to. [para. 13, footnote 13].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20; 144 D.L.R.(4th) 1, refd to. [para. 13, footnote 14].

Gombu v. Information and Privacy Com­missioner (Ont.) et al. (2002), 160 O.A.C. 105; 214 D.L.R.(4th) 163; 59 O.R.(3d) 773 (Div. Ct.), dist. [para. 13].

Statutes Noticed:

Assessment Act, R.S.O., c. A-31, sect. 39 [para. 10].

Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M-56, sect. 14(1)(d) [para. 9]; sect. 15(a) [para. 22].

Counsel:

Mahmud Jamal and Jennifer Lynch, for the applicant;

William S. Challis, for Tom Mitchinson (Assistant Commissioner);

Tamar Witelson and Louis Sokolov, for Security Recovery Group Inc.;

Leslie McIntosh, for the Attorney General for Ontario.

This application was heard on February 10, 2004, before Benotto, S.J., Dunn and McCombs, JJ., of the Ontario Divisional Court, who released the following decision on May 21, 2004.